MacOn, Bruce William

• Court: Court of Appeals of Texas
• Decided: February 5, 2015
• Docket: WR-76,956-07
• Status: Published

Opinion

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February l, 2015

Court Of Criminal Appeals Clerk, Abel Acosta

P.O. Box 12308, Capital Station Austin, Texas 787ll

RE: Ex Parte Bruce William Macon Writ Nos. WO9-00206-H(D) and WO9-00207-H(D) Trial Court Nos. FO9-00206 and FO9-OO207

Dear Clerk/

Enclosed you will find "Applicant's*Traverse To The Trial Court's Findings of Fact And Conclusion Of Law" in the above styled and numbered cause. Please file-stamp said instrument and bring it to the attention of the court in your usual fashion.

Thank you for your time and cooperation.

Respectfully Submitted:

Qa:M¢A

Bruce William Macon No.156833l Coffield Unit `

2661 F.M. 2054

'Tennessee Colony, Texas 75884

CC: christine s. ou RECE|VED INI Asslstant District Attorney @OURT OF CR|M\NAL APPEALS

Frank Crowley Courts BLDG. »133 N. Riverfront Blvd. .LB-19 (FEB 05 2015 Dallas, Texas 75207-4399

Abel Acosia, mem

Writ NO. WO9-OOZO€-H(D)

Ex Parte § In The Criminal

§

§ District Court Bruce Macon §_ Applicant § Dallas County, Texas

liCaIlt'S Travel`Se TO The Trial COL`lI`t'S findin S Of FaCt g And COnClUSiOn Of Law

To The Honorable Court Of Criminal Appeals:

Now Comes, Bruce Macon, Applicant, Pro se, and files this "Applicantfs Traverse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the habeas court to grant this foregoing state post conviction writ of habeas corpus. And, in

support thereof will show this Court the following:

I On November 31 2014, Applicant $filed this}foregoing writ of habeas corpus alleging that he was deprived effective assistance of counsel in violation of the

Six and Fourteenth Amendment when his trial counsel failed to inform him that the

state had offered him six months in State Jail on both offenses.

II

On December 17, 2014, Applicant's appointed trial attorney, Roger Lenox filed a second affidavit addressing applicant's claim that he was denied effective assis- tance of counsel 'when Mr. Lenox failed to inform applicant of the six month state jail offer made by the state. In Mr. Lenox's second (supplemental) affidavit he

stated in pertinent part:

"This affidavit supplements my affidavit dated on or about October 24, 2013. I

was appointed by the Court to represent Mr. Bruce Macon on or about December 011 2009. Mr. Macon was charged with Unlawful Restraint Under 17 in cause nos.FOS- 63532 and F08-63533, both state jail felonies. The 180 day state jail plea offer was communicated 'to. Mr. Macon as a temporary offer. I recall it was a "today

only" offer. Mr. Macon rejected the offer straightway and without hesitation.

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Mr. Macon was emphatic in his rejection of the offer. I returned to the prosecuor and communicated Mr. Maconis rejection of the state jail plea offer. l remember

it well as it was a most generous offer in light of the charges, evidence and potential range of punishment. The entire exchange, offer and rejection, began and ended within a matter of a few minutes." (See: Second affidavit of

Roger Lenox/ Dated December 17, 20l4). III

On January 5, 2015, the criminal District Court No. 1, of Dallas County, Texas

'made it's "Findings Of Fact And Conclusion Of Law" finding that:

"The Court has reviewed the district attorney's file for any mention of the

180 day plea bargain offer. No such offer was ever written on the original " files or on the re-indictment files. Lenox states that the 180 day offer was

a "temporary offer" and a "today only" offer. Applicant rejected the offer "straightway and without hesitation" and ,Applicant was "emphatice" in his rejection of the offer. Lenox recalls the offer because it was "most generous" in light of the charges, evidence and potential range of punishment. The entire offer and rejection "began and ended within a matter of a few minutes." (See:

Findings Of‘Fact, pp.3)-

'§The trial court then concluded that:

"Applicant has failed to prove that he received ineffective assistance of counsel Applicant did not prove that but for the ineffective advice of counsel there is a reasonable probability that Applicant would have accepted the plea offer. Applicant has not been denied any of the rights guaranteed him by the United States Constitution or the Texas Constitution. Appliant is legally confined and

restrained." (See: Conclusion Of Law, pp.3)

IV

Applicant now contends that the findings of fact and conclusion of Law recom- mended by the trial court should be overruled because the trial court's findings

and conclusion is contradicted by the record for three reasons.

First, the trial court's findings that he reviewed the district attorney's

file for any mention of the 180 day plea bargain offer, but "no such offer was

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ever written on the original files or on the re-indicted files" is contradicted

by the record, because a review of the district court's findings Of Fact to applicant's

third writ of habeas corpus, Writ No. 76,956-05 and No.76,956-06 shows that the

trial court found that:

"Applicant was initially charged with two state jail felony offenses of unlawful restraint. He was offered the minimum period of confinement-180 days- in both cases and the sentence would be concurrent with credit for backtime. Applicant rejected the plea bargain offer and insisted on a jury trial;"(See: Findings 0f Fact And Conclusion Of Law On Remand,pp.l-Writ No.WO9-00205-H(c) and WO9- 00206-H(c). Therefore, the trial court's finding that "No such offer was ever written on the original files" must be overruled, because such a finding has resulted in an unreasonable determination of the facts in light of the evidence

contained within the record.

Second, the trial court's finding that the 180 day offer was a "temporary offer" and a "today only" offer, should also be overruled because trial counsel's second affidavit 'dated December 17,. 2014, contradicts his first affidavit dated October 24, 2013, thereby making both affidavits inadmissible. Furthermore, the fact that trial counsel has given two conflicting statements while under oath/

shows that trial counsel has committed perjury in violation of Section 37.02/(a)(l),

d Texas Penal Code subjecting him to criminal prosecution. A review of both affidavits

are as follows: Trial Counsel's First Affidavit

In trial Counsel's first affidavit dated October 241 2013/ while addressing the issue of the 180 day state jail offer, Mr. Lenox stated in pertinent part that:

"I promptly met with Mr. Macon and determined that he wanted a jury trial. I

met with the prosecutor, Ms. Cresta Lemaster, and discussed the case. Ms. Lemaster made a plea offer within the state jail range. 1 believe the offer was 180 days in the state jail on both cases, to be run concurrently and credit for any backtime. Mr. Macon was insistent on maintaining his innocence and

insisted on a speedy trual. Ms. Lemaster and 1 met several times. Mr. Macon and

I met several times. She would not dismiss the cases or reduce to misdemeanors. Mr. Macon would not acceptv the plea offers within the state jail range of punishment. The cases.were set for jury trial on March 301 2009."

Here,. in Mr. Lenox's first' affidavit the record shows that Mr. Lenox never stated that the 180 day state jail offer was a "today only" offer as stated in second affidavit dated December 171 2014. To the contrary1 Mr. Lenox stated in his first affidavit that--"Ms. Lemaster and I met several times. Mr. Macon and I met several times. She would not dismiss the cases or reduce to misdemeanors. Mr. Macon would

not accept the plea offers within the state jail range of punishment."

_ In summary1 the record shows that trial counsel's first affidavit states that the State's offer lasted for at least-two months1 while_ trial counsel's second affidavit states that the State's offer was a "today only" offer “which began and ended within a matter of'a few minutes". (See:‘ First Affidavit of Roger Lenox1 Dated October 241 2013) compared to (Second Affidavit of Roger Lenox1 Dated December 171 2014).

Trial Counsel's Second Affidavit

In trial coujnsel's second affidavit dated December 171 20141 while addressing the issue of the 180 day state jail 0ffer1 Mr. Lenox made. conflicting statements

when he stated that:

"The 180 day state jail plea offer was communicated to Mr. Macon as a temporary offer. I recall .it was a "todayv only" offer. Mr. Macon rejected the offer straightway and_ without hesitation. Mr. Macon was.emphatic in his rejection of the offer. I returned to the prosecutor and communicated Mr. Macon’s rejection of the state jail plea offer. I remember it well as it was a most generous offer'in light of the charges1 evidence and potential range of punishment. The entire exchange1 offer and rejection1 began and ended within a matter of a

few minutes."

Here, in Mr. Lenox's second affidavit -the record shows that Mr. Lenox gave conflicting statements when he stated --"I recall it was a "today only" offer--after stating that--"Ms. Lemaster and I met several times. Mr. Macon and l met severaltimes She would not dismiss the case or reduce to misdemeanor. Mr. Macon would not accept

the plea offer within the state jail range of punishment"--in his first affidavit.

`Furthermore, the two affidavits also shows that Mr. Lenox made conflicting statements in his second affidavit when he stated that --"The entire exchange1 offer and rejection1 began. and ended within a matter of a few minutes"-- after stating

that--"Ms. Lemaster and I met several times. Mr. Macon and I met several times. She

would not dismiss the cases or reduce to misdemeanors. Mr. Macon would not accept l

the plea offers within the state jail range of punishment"-~in his first affidavit.

Applicant maintains_ that trial counsel never informed him of the 180 day state jail/l offer and states that Mr. Lenox is lying to_cover up his deficient performance

in failing to inform him of that offer. (See: Affidavit of Bruce Macon1 Exhibit No.3)

And the fact that Mr. Lenox has given two conflicting statements regarding the pleas§j"

offer supports applicantls claim that Mr. Lenox never informed him of the 180 day .state jail offer. Applicant further maintains that he would have accepted the 180 day state jail offer had hereen informed of the offer. Applicant maintains that he: knew the&seriousness of the charges against him because he has four prior felony convictions. Therefore1 he knew that the charges would not be dismissed under any circumstances. Applicant maintains that' considering' thev fact that he was already av four time looser1 it should be ovious to the court that he would have taken the

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180 day offer if he had been given the opportunity to do so¢

Furthermore1 the fact that Mr. Lenox has given two conflicting statements in his affidavits supports. applicant's claim1 because the-record shows that Mr. Lenox has committed perjury in violation of Section 37.021 Texas Penal Code1 making both

affidavits inadmissible in any criminal or civil proceeding. Hardy V. State1 213 S.W. 3d 9161919(Tex. Crim. App.2007). Consequently1 the trial court's findings of Facts stating that--"Lenox states that the 180 day offer was a "temporary offer" and a "today only" offer which began and ended within a matter of a few minutes"--should be overruled based upon Mr. Lenox's conflicting affidavits1 because trial counsel's cannot change their statements at will1 inorder to hide the fact that they failed to provide reasonably effective assistance of counsel. Texas Penal Code § 37.02(Vernon

Supp. 2005); Hardy1 213 S.W.3d 9161 919(Tex. Crim. App. 2007).

Consequently, the trial court's conclusion of law holding that--"Applicant” has failed to prove that he received ineffective assistance of counsel. Applicant did not prove that but for the ineffective advice of counsel there is'a reasonable probability that Applicant would have accepted the plea offer; Applicant has not been denied any of the rights guaranteed him by the United States Constitution or the 'Texas Constitution. Applicant is legally confined and restrained." --should be over- ruled because the triai: court's decision is based upon false affidavits made by Mr. Lenox, and_ has resulted in an unreasonable application of clearly established

federal law as determined by the Supreme Court of the United States.

Third1 the trial court's findings of fact and conclusion of law should be over- ruled because the trial court failed to investigate or consider applicant's witness affidavits from Jeanette Dixon1 Applicant's girlfriend (Exhibit No. l)@ and Michell Lankford1 Applicant's sister (Exhibit No. 2). Both of these witnesses stayed in con- stant contact with Mr. Lenox from the first week that Mr. Lenox was appointed to represent applicant until applicant was tried and convicted by the coury..The fact thatA Mr. Lenox .informed applicant's family of all plea bargains is supported by

a letter from Mr. Lenox stating that he communicated to Mr. Macon through his family. (See: Letter from Mr. Lenox stating that he communicated to applicant through his

family1 Jeanette Dixon and Michelle Lankford1 ExhibitMNo.4).

The evidence presented in these affidavits were vital to applicant's habeas corpus preceeding1 because both of these witnesses were in constant contact with Mr. Lenox during the plea bargain process and both of these witnesses had given sworn affidavits stating that Mr. Lenox never informed them of the 180 day state jail offer1 but that he did inform them of the twenty year plea offer. (See: Exhibit No. 11 Affidavit of Jeanette Dixon1 and Exhibit No. 21 Affidavit of Michelle Lankford1

However, the record shows that the trial court failed to consider applicant's witness affidavit while addressing his claim of ineffective assistance of counse11 thereby denying applicant due process of law in violation of the fifth and fourteenth amendment. For this reason and the reasons stated above1 the "Findings of Fact And Conclusion of Law" of the trial court is unreliable1 because it is not supported by the record. Ex Parte Brandley1 781 S.W.2d 8861 887(Tex. Crim. App.1989). In conclu- sion, the recommendation of the trial court mus:be overruled and applicant's habeas corpus petition should be granted1 reversing his conviction and remanding his cause back to the point of the State prosecutor offering him six months in state jail.

Applicant So Moves The Court.

Respectfully Submitted: /BA»/~V'Vl

Coffield Unit 2661 F.M. 2054 '

Tennessee Colony1 Texas 75884

Applicant1 Pro se

Certificate Of Service

11 Bruce Macon1 Applicant1 Pro se1 do hereby certify that a true and correct copy of this foregoing instrument has been served upon Christine S. Ou1 Assistant District Attorney1 Frank Crowley Courts BLDG., 133 N. Riverfront BLVD., LB-191 Dallas1 Texas 75207-4399. Executed on this lst day of February, 2015.

Sign= 13»» 7/14/

Bruce Macon1 No. 1568331

Exhibit Number One (Affidavit Of Jeanette Dixon)

State Of_Texas

Sworn Affidavit

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County Of Dallas

"’-Affiaa“vi`t'ofJeanettenixon

Before me1 the undersigned authority, personally appeared Jeanette Dixon and

after being duly sworn stated the following:

My name is Jeanette Dixon1 and 1 am over 18 years of age and competent to make this affidavit. I am the Mother of Bruce Macon's children. Prior to Bruce Macon's tria11 1 talked to Mr. Roger Lenox on many accasions and even filed a "Non-Prosecu-. tion form" stating that 1 was not being held against my will on the day of this incident. While talking to Mr. Lenox he would always tell me that the Stateis:~ attorney was offering Bruce twenty (20) years if he plead guilty to both offenses.

But Mr. Lenox never inform= me nor Bruce Macon that the State's attorney had offered Bruce' six (6). months in state jail. Had 1 been informed of a six month state jail offer 1 would have insured that Bruce would have excepted the offer rather

than go to trial knowing that he could receive twenty-five years to life in prison.

1 further state that 1 have not been threatened or coerced to make this_ statement1 nor have 1 received or been promised anything of value to make this affidavit. 1 have signed this affidavit knowingly, freely, voluntarily and because

the statements made herein are true and correct.

Subscribed And Sworn To Before Me, the undersigned auth

of 0ctober1 2014.

OU|NN PDNDEXTER Noiary Pub|ic S!anzniTaxas

Exhibit Number Two (Affidavit Of Michelle Lankford)

State Of Texas

907¢07°0?¢07901

Affidavit Of Michelle Lankford

Before Me, the undersigned authority, personally appeared Michelle Lankford

and after being duly sworn stated the following:

My name is Michelle Lankford1 and 1 am over 18 years of age and competent to make this affidavit. 1 am the sister of Bruce Macon and 1 have testimony supporting my brother‘s claim that Mr. Lenox never informed Bruce of a six month state jail offer. Prior to my brother‘s trial 1 called and talked to Mr. Roger Lenox on many accasions. 1 specifically asked Mr. Lenox what was the State trying to offer Bruce? Mr. Lenox told me that the State was offering Bruce twenty (20) years in prison if Bruce plead guilty to both offenses. Mr. Lenox never informed me nor Bruce thzi thmitheita&¥s attorney had offered him six (6) months in state jail. 1f Mr. Lenox would have informed me Or my brother of a six month state jail offer' 1 would have insured that Bruce Macon would have excepted the offer rather than go to trial knowing that he could receive twenty-five years to life in prison. 1

will testify to this in a court of law.

1 further state that 1 have not been threatened or coerced to make this, statement1 nor have 1 received or been promised anything of value to make this affidavit. ,1 have signed this affidavit knowingly, eely, voluntarily and

because the statements made herein¢are true and correct

of 'october, 2_014.

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Exhibit Number Three (Affidavit 0f Bruce Macon)

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County Of Anderson

Affidavit Of Bruce William Macon

Before me, the undersigned authority1 personally appeared Bruce William Macon

My name is Bruce William Macon, and 1 am over 18 years of age and competent to make this affidavit- My trial counsel, Mr» Roger Lenox stated in his affidavit that he notified me that there was a plea offer of 1as he stated--"I believe the offer was 180 days" --in state jail on both cases, but 1 insisted on maintaining my innocence and insisted on a speedy trial. This is a false statement. Mr; Lenox did not inform me of the offer of 180 days in state jail made by the State. Had 1 been informed of this six month plea offer 1 would have accepted this offer and taken the 180 days rather than proceed to trial knowing that 1 could receive 25 years to life

in proson if found guilty.

When 1 first got indicted in cause numbers F08-63532 and FO8-635331 1 was informed by my trial counsel that 1 was charged with third degree felonies with two enhancement paragraphs on each Charge(See: Indictment No.F08-63532 and F08-63533)1 but that the D.A. would drop one enhancement paragraph and offer me 20 years on both offenses if 1 plead guilty. Mr. Lenox never informed me of a six month state jail offer. To my knowledge based on information from my trial counsel and the indi- ctments, 1 was charged with 3RD degree felonies (See:Indictment No. F08-63532 and F08~63533)1 because the top right hand corner of each indictment reads: "UNL Restraint U/l7/3RD".` This is proof that Mr. Lenox never informed me that 1 was charged with a state jail offense. This is why 1 wanted to go to trial, because 1 would not accept the first offer of 20 years offered by my trial counsel-

sign: ;| jx__,/%<,_/

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Bruce William Macon

'lof 2

11 Bruce William Macon, TDCJ-ID No.l56833l1 being presently incarcerated in the Coffield Unit of the Texas Department of Criminal Justice1 lnstitutional Divi- sion in Anderson County, Texas verify and declare under penalty of perjury, that`

the foregoing statements are true and correct.

Sign= T»~ V/L¢\/

Subscribed And Sworn To Before Me1 the undersigned authority1 on this day of July1 2014.

Notary Public, State of Texas

2 of 2

Exhibit Number Four

(Letter From Trial Counsel1 Roger Lenox)

vs/'\_) LA W OFFICE OF ROGER S. LEN0X AiA

Attorney and Counselor at Law

Thursday, Ju|y 26, 2012

Mr Bennie Rami_rez ' __ _ __ _ VIA Eax#__ 512-427-4122

- PO BOX12487 ~-.__ , _. _ _, _ _, __ H{MZ@_ ag%/

Capital Station Aust_in, TX 78711-2487

Re: State of Texas v. Bruce Macon

Dear Mr. Ramirez:

As l communicated to Mr. Macon through his fami|y, l do not have a file regarding his case. The relevant documents are maintained by the Court. Therefore, l have no information to mail to him.

Do not hesitate to let me know_ if you have questions or comments

CC: 7 l\/lr. Bruce Macon ~ #1568331 7 _ Coffield Unit

2661 FM 2054

Tennessee Colony, TX 75884

P. 0. BoX222123 DALLA§, TEXA$ 752`2`2 2123 / TELEPH@~E 214333` 3040 FAcs/MlLE 214 3333033_

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